Employment Contracts and Penal Clause

Employment contracts are established between the employees and the employer in order to regulate the rights and responsibilities of the parties to one another, working conditions and the scope of the work, and corresponding material liabilities in case of violation of the article specified in the contract.

Contract Types

Indefinite Term Employment Contract: This employment contract is agreed between the employee and the employer without being bound by a timeframe.

Fixed Term Employment Contract: In this contract the end date of the employment date is predetermined. In fixed-term contracts, the employment relationship ends at the end of the specified period. Unless it is based on a fundamental reason, it cannot be renewed more than once in a row. In the event that it is renewed repeatedly without a fundamental reason, the contract is considered to be an indefinite term contract from the beginning of the employment contract.

Part-Time and Full-Time Employment Contracts: Work contracts with a maximum working time of 30 hours per week are part-time and those made for 45 hours are called full-time employment contracts. A worker employed on a part-time employment contract cannot be subjected to a different practice than a worker employed on a full-time employment contract, unless there is a legitimate reason.

Trial Period Employment Contract: A trial period employment contract can be concluded for a maximum of 2 months. With collective bargaining agreements, this period can be extended up to a maximum of 4 months. This is the period when the employee gets used to the job and trust is established between the employee and the employer. At the end of the trial period, the contract can be terminated without the need for notice.

Employment Contract Based on Remote Working: It is an employment contract based on the principle that some or all of the work to be done is carried out outside the workplace. This type of contracts are increasing in number especially with the covid-19 pandemic period. Details on the method and application of the remote work are included in the Remote Working Regulation published on March 10, 2021.

Job-on-Call Contract: This is a need-basis contract in which the job will be performed if the employee is needed for the work to be done. Unless otherwise agreed, the employer must give at least 4 days’ notice to the employee to be employed. If the contract does not specify how long to work, the weekly working time is considered to be 20 hours, but if the daily working time is not agreed, the employer has to hire the worker at least 4 consecutive hours a day on each call.

Penal Clause in Employment Contracts

Although there is no regulation regarding the penal clause in contracts in the Labor Law No. 4857, Article 179 of the Code of Obligations states that “If a penalty is determined for the non-performance of a contract at all or as required, the creditor may request the performance of either the debt or the penalty unless otherwise understood from the contract.”

Penal provisions in employment contracts should be regulated in accordance with the laws regulating work life and to include equal sanctions on both parties. For this reason, the articles added by the employer against the employee and without the employee’s consent will be deemed invalid.

While penal clauses are generally used in fixed-term employment contracts, penal clauses can be added to all contracts except for fixed-term employment contracts. Many reasons, such as non-payment of the wage, failure to perform the specified job, and not paying attention to the issues that need special attention, can be covered under penal clauses. But here, the punishment and the behavior requiring punishment must be based on a fundamental reason.

Penal Clause Regarding the Training Expenses Given to the Worker

Before or after the employment contract between the employee and the employer is drawn up, the employer may provide the employee with training opportunities to gain new qualifications and improve existing skills.

The employer, who allocates certain resources for training, can add provisions to the contract that will guarantee the compensation of the training expenses from the worker, in case the employment contract is terminated by the worker without a just cause and without obtaining sufficient efficiency from the worker. 

For the penal clause, a minimum working period specified in the contract should be determined before the termination period, and this period should be determined in direct proportion to the duration and quality of the training received

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